Separating Children from their Parents

Amy is a young mother who has three children. She was expecting her fourth. Amy accepts that over a long period she has had a drug problem and despite much help and advice, Amy has not been able to go clean for any length of time.

Sadly, Amy’s three eldest children have previously had to be removed from her under court orders because of her drug abuse and neglect of the children. Whilst she was pregnant with her latest child, Amy was seen around her town in a very dishevelled state and in the company of known and convicted drug dealers. Social workers visited Amy at her home. Her flat was in a very poor state, dirty and chaotic. She had allowed herself to become unkempt: it was obvious also that she was not eating properly and that there was a real risk to her unborn child.

One of the tragedies of Amy’s story is that, when she is free from drugs and functioning properly, Amy is an adequate, loving and caring mother. What Amy desperately needs, for her own sake and for that of her children, is intensive help in becoming drug free and maintaining a healthier lifestyle.

When Amy was pregnant with the most recent child, a residential programme to provide this help for Amy was identified. It was, however, agreed by the professionals that Amy could not immediately provide safe care for her new born child without help. Similarly, she would not be able to concentrate on the baby and at the same time, on the very demanding requirements of her drug treatment programme. It was, therefore, decided that, when the baby was born, there was no realistic alternative but to remove the baby from her mother, at least for a time (probably not less than 8 weeks at the start), so that an assessment could be made of how Amy was progressing with her treatment.

When a child has been harmed at home or, as in the case of Amy’s new baby, there is a real risk of harm, the law imposes on the social services department of the local authority a legal duty to take proportionate steps to protect that child. In making the decision about what is necessary to provide protection, the local authority must consider all the options for achieving the aim of making the child safe.

In Amy’s case, the professional view having been taken that, if Amy was going on the programme she would not be able to care for her baby at the same time, the issue was what was to happen to the child.

Of course, Amy could have said that she would not go on the course because she wanted, understandably, to be with her new baby. However, if she took that line, it was very likely, from her past history, that within a short time, she would again be involved with drugs, would be neglecting the child and compulsory action would have to be taken to remove the baby. If that happened, the prospect of the baby ever going back to her mother was minimal.

Accordingly, what happened was the local authority devised a plan specifically for Amy and her new baby. Under this plan, the baby would be removed from Amy within 48 hours of the birth. Amy would agree to commence the rehabilitation programme immediately. She would spend the first four weeks in a residential unit. The baby would be brought to see her every day. If during that period her progress was good, Amy would then move back home, although she would have to attend the unit daily at first for a continuation of her course. After three months, Amy’s progress would be assessed and a decision would be made as to whether the baby could go and live with her, under close social worker supervision.

Obviously if this plan was to be put into operation, arrangements would have to be made for the new baby to be cared for somewhere else. When this situation arises, there is a method under which, if a mother agrees (and father, if both parents are involved with the child), the child can be placed with other carers, usually foster parents. If the parents do not agree to such an arrangement, the local authority is not permitted by the law to remove the child without a court order. This is sometimes called a “section 20 agreement”, under the law which permits a child to be separated from the parents without a court order.

Before that separation takes place, however, there are various checks which the local authority has to make, which include:-

ensuring that the mother/both parents have given their full agreement;

(b) ensuring that the parents apparently understand clearly what they are signing

and the implications and assessing whether there is a language problem

which might prevent full understanding;

(c) making it clear to the parents that they are not compelled to sign;

(d) carrying out an assessment of the physical and mental state of the parents

and acknowledging anything which might make it difficult or impossible for

them to understand what is happening

(e) telling the parents that they have the right to take legal advice or speak to a

family member or friend before making a decision

(f) whether there is another solution which would avoid the need for the child to

be removed.

Obviously, decisions of this sort are extremely difficult for everyone involved. Most important of all, they are critical for the child. Full cooperation with the local authority is usually the best option. That does not mean necessarily agreeing to everything they want to do but it is important to listen to and respond in the right way to their plans.

It is also vital that legal advice is taken at the earliest possible stage in the process, even when the local authority has just started its investigations.

If you or anyone you know is in this position, you are invited to contact one of our experts for some urgent preliminary advice. We are very experienced in dealing with these situations.

For more information or some preliminary, confidential advice, please contact one of our experienced experts in our family team by e-mail or telephone.

Rosie Bracher: Specialist Family Law Solicitors 01271 314904

Please note: in the case mentioned above, the name of the mother and some of the details have been changed to avoid any possibility of those concerned being identified. However, the circumstances are very similar to many cases with which we deal.